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David W. Johnson
From: Nancy Dorgan [ndorgan@waypoint.comj
Sent: Sunday, November 27,20053:32 PM
To: David W. Johnson
Cc: Lorna Delaney; Wiatrak, Phil (ECY); Klocke, Karen (DOH); Josh Peters; 'Gerald Steel'
Subject: Marrowstone Construction: MLA05-00276
David W. Johnson
Jefferson County
Department of Community Development
David:
Attached is the .pfd file for the Marrowstohe summary judgement on the LUD formation. Judge
Williams ruled that:
"The Court finds thatformation of the LUD is not precluded even though at the time of
the formation of the LUD the specific improvements contemplated were not within the
specific provisions of the public water system coordination act or the PUD's own water
service plan. Those plans must be amended. however. prior to any construction of the
12roposed LUD."
As I stated in my earlier comments on MLA05-00276, there has been no programmatic SEPA
review of the impacts of the Marrowstone system on the Chimacum Creek sub-basin that will
be the source of Marrowstone water. Lacking to date is relevant SEPA review of:
(1) the PUD's 2004 Water System Plan update; i 'Fe ~ oC;
(2) a DOH-required amendment to that WSP for the new Marrowstone system; C" {(
(3) the PUD's engineering Project Report for construction of the Marrowstone system;
(4) Marrowstone construction permits, which DCD deemed to be SEPA-exempt,
despite adjacent wetlands and shoreline considerations
(5) proper completion, with SEPA, of an amendment to the County's Coordinated Water
System Plan referred to above in Judge Williams' ruling. PCJt{ leo..& ~
The Marrowstone water system has almost successfully eluded programmatic environmental
review, a review that has nothing to do with 8" pipes. The project has also been phased in
such a way as to avoid SEPA review of necessary and known under-water components of the
water system.
If the requested permits in MLA05-00276 are issued, they will not be consistent with the
existing Jefferson County Coordinated Water System Plan. WUCC approval of the
Marrowstone service area is not a sufficient CWSP amen~ent. Such an t~~rr~rOFeds
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to be a legislative/SOCC decision with prior SEPA notice and determination, and then given
final DOH approval. None of that has happened yet.
How and when does the County intend to address the CWSP inconsistency?
Thank you.
Nancy
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David W. Johnson
From: Nancy Dorgan [ndorgan@waypoint.com)
Sent: Monday, November 28,20058:45 AM
To: David W. Johnson
Subject: Re: Marrowstone Construction: MLA05-00276
Thanks, David. I wanted to give you an early heads-up in this comment period. It's a
complicated situation that has been allowed to get worse for lack of attention.
You should also know that although the WUCC approved a set of PUD service area maps in
April '04 that included the new Marrowstone service area, those maps were subsequently
rejected by DOH for lack of detail. Mark Horton and the County then created a new set of
maps and forwarded them directly to DOH. Those revised maps were never given to the
WUCC for review and approval. The WUCC has not met again since April '04.
There are a lot of people you will need to talk to to get this cleared up. I want to see this
process done right and without shortcuts. I'd be glad to help in any way I can.
Nancy
385-9287
----- Original Message -----
From: David W. Johnson
To: Nancy Dorgan
Sent: Monday, November 28,200510:13 AM
Subject: RE: Marrowstone Construction: MLA05-00276
I will review this issue and let you know.
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11/3012005
SUPERIOR COURT OF WASHINGTON
COUNTY OF JEFFERSON
)
CONSERVE WATER FIRST, a )
Washington nonprofit corporation; CARRIE)
And REX RICE, husband and wife, )
And WAYNE and NICOLE CHIMENTI, )
Husband and wife, )
Plaintiffs, )
)
)
)
)
)
)
vs
JEFFERSON COUNTY PUD NO.1,
Municipal corporation,
Defendant.
WATER FOR MARROWS TONE, a)
Washington nonprofit corporation; KELLY)
And GLORIA HAYS, husband and wife; )
And RALPH and ANNE RUSH, husband )
And wife, )
Intervenors/Defendants. )
)
)
1. PARTIES:
RECEIVED
""Ii!'lt'"
NOV 2 8 LutiO
JEHE"SOM LOUMlY fiCO
NO. 04-2-00155-1
MEMORANDUM OPINION
ON SUMMARY JUDGMENT
Conserve Water First is a Washington nonprofit corporation. It and two marital
communities constitute the Plaintiffs in the above matter. Plaintiffs are property owners
on Marrowstone Island. They are opposed to the Defendants' plans to construct a water
utility to serve the island pursuant to a LUD.
Defendant Jefferson County PUD No. 1 is a public utility district organized
under the laws of the State of Washington. The PUD seeks to build a water distribution
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system upon Marrowstone Island and seeks to assess property owners for the costs of
that installation by forming a LUD. Intervenors, Water for Marrowstone, is another
Washington nonprofit corporation and two marital communities who are also property
owners on Marrowstone Island who are in favor of the PUD' s proposed plans for
construction of the water utility.
Public utility districts are statutorily created municipal corporations. RCW
54.16.030 allows such districts "to construct, purchase, condemn and purchase, acquire,
add to, maintain, conduct and operate water works and irrigation plants and systems
within or without its limits for the purpose of furnishing the district, and the inhabitants
thereof, and of the county in which the district is located... with an ample supply of
water for all purposes, public and private..."
Public utility districts are created by statute and they are granted certain powers.
Because such municipal corporations have no power to act on their own they are limited
to operating within the powers specifically granted to them.
RCW 54.16.120 authorizes public utility districts to "establish and define the
boundaries of local assessment districts".
Such local utility districts may be established specifically for the distribution of
water and PUDs are authorized to levy and collect "in accordance with the special
benefits conferred upon individual parcels of property such special assessments and
reassessments as are necessary for paying the cost and expenses of such water
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distribution. Here, Jefferson County PUD No. 1 seeks to form a local utility district
(LUD #14) for the provision of water to portions of Marrowstone Island. Following
public hearings Jefferson County PUD No.1 adopted resolution #2003-10, ordering the
formation of the local utility district in accordance with the "resolution method"
authorized by RCW 54.16.140.
Plaintiffs oppose the formation and imposition of the local utility district upon
their properties and complain that the actions of the public utility district were not in
compliance with applicable statutes and legal requirements and should be deemed of no
effect. Defendant and intervenors allege that all appropriate procedures were followed
and that the resolution forming LUD #14 is valid and that the PUD should be allowed to
proceed to construction of the improvements contemplated.
II. SUMMARY JUDGMENT:
Defendant Jefferson County PUD No.1 has moved for summary judgment
dismissing the challenge to the formation ofLUD #14 filed by the Plaintiffs. For
purposes of summary judgment a Court is required to construe those facts presented and
reasonable inferences from those facts in a light most favorable to the non-moving
party. It is only when the Court can determine an issue as a matter oflaw that a Court
may grant summary judgment. The Court is not allowed to weigh the evidence. If there
is a dispute as to a material fact (that is, a fact upon which the outcome might be based),
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that factual dispute must be submitted to an appropriate fact fmder for determination as
to which fact or set of facts has been proved. The facts here are largely undisputed.
The parties are in agreement that there are six material issues. They are as
follows:
ISSUE NO.1: Did the PUD violate RCW 54.16.130 by failing to establish
by resolution "the method of procedure in all matters relating to local
utility districts?"
RCW 54.16.130 in pertinent part states:
"The commission shall by resolution establish the method
of procedure in all matters relating to local utility
districts. A public utility district may determine by
resolution what work shall be done or improvements
made at the expense, in whole or in part, of the property
specially benefited thereby; and adopt and provide the
manner, machinery and proceedings in any way relating
to the making and collecting of assessments therefore in
pursuance thereof. Except as herein otherwise provided
or as may hereafter be set forth by resolution, all matters
and proceedings relating to the local utility district, the
levying and collection of assessments, the issuance and
redemption of local improvement warrants and bonds, and
the enforcement of local assessment liens hereunder, shall
be governed, as nearly as may be, by the laws relating to
local improvements for cities and towns..."
Plaintiffs allege that the Jefferson County PUD No. 1 has no resolution
establishing the method of procedure for all matters relating to local utility districts.
The Defendants point to Resolution #99, (Exhibit 0 attached to the declaration of Jim
Parker, the public utility district manager), as constituting the necessary resolution.
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That resolution is titled: "A Resolution of the Commission of Public Utility
District No.1, Jefferson County, Washington, establishing the method of procedure in
all matters relating to local utility districts."
The language RCW 54.16.130 of the statute is couched in mandatory terms.
The commission "shall" establish the method of procedure by resolution. The use of
the term "shall" is in contra distinction to the use of the word "may" in the next
sentence. It seems clear that the Legislature contemplated that each public utility
district would adopt procedures for LUDs and would do so by resolution.
A resolution has been defined as "a formal expression of the opinion or will of
an official body or a public assembly, adopted by vote; as a legislative resolution." See
Black's Law Dictionary Revised 4th Edition, 1968. Resolution #99 was signed by the
public utility district Board of Commissioners on September 28, 1959. It largely parrots
the State law provisions relating to formation oflocal utility districts. (In Section 7 it
also establishes an interest rate for delinquent assessments. Such an interest rate is not
specified in state statutes.) In Section 1 the typed portion of the document indicates that
local assessment districts (plural) will be known as "local utility district no. _".
Someone has filled in by hand, the number "I". It is the Court's understanding that
resolution #99 was enacted at the time that the commission formed local utility district
#1, the district's first LUD. A fair reading of the document indicates that it is meant to
be applied to formation of all future local utility districts by PUD #1 including those to
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be enacted subsequent to the resolution date of 1959. The use of plural language within
the text and the title of the document require such a conclusion.
The Plaintiffs point out that "no effort was made to create an actual set of
procedures to supplement or expand upon those created by the Legislature by statute"
(Plaintiffs' response to Defendants' motion for summary judgment, page 9, lines 12-14)
Plaintiffs allege that the resolution does not therefore meet the directive of RCW
54.16.130. Plaintiffs state that "the obvious purpose of that statute is to require public
utility districts to adopt their own procedures for forming and otherwise administering
local utility districts as a supplement to the statutorily mandated procedures. Otherwise
the statute has no meaning." (Plaintiffs' response, page 9, lines 17-21).
There are two components to the mandate of the State statute. The first is that
the public utility commission shall pass a resolution. There is no dispute that the
commissioners in 1958 did in fact enact a resolution which, at least by its title, purports
to comply with the mandate ofthe State statute. The second mandate is that the
resolution shall "establish the method of procedure in all matters relating to local utility
districts. "
The statute is not more specific as to what is intended. In some respects
resolution #99 merely indicates that Jefferson County Public Utility District #1 will
meet the minimum requirements of the State statutes for establishing local utility
districts.
In some respects it does more than adopt by reference the State mandates in
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that it spells out specifically what State law provisions it intends to follow. Had State
law changed since the adoption of resolution #99, in a way that would not have
prohibited the procedure outlined in resolution #99, the PUD would nevertheless be
required to comply with its own resolution rather than the amended State law. Here,
resolution #99 is a clear indication from the then existing board of PUD commissioners
that they are satisfied that the procedures outlined in the State law are appropriate for
the purposes of the Jefferson County PUD #1 and they adopted them, not by reference,
but specifically. The resolution supplements the RCW provisions by establishing
interest rates. In the opinion of the Court the resolution clearly meets the somewhat
limited mandate ofRCW 54.16.130. The law required the commission to formally
adopt a method of procedure. They could not adopt procedures which were contrary to
State law and they were not required to adopt any specific procedures which were
different than State law. Accordingly, on issue #1, the Court finds that summary
judgment should be granted in favor of the Defendants and the issue relating to the
adoption of a resolution of procedure is dismissed.
ISSUE NO.2: Did the PUD improperly calculate the percentage of protest
to formation of LUD #14 (a) by counting "parcels" rather than "owners" in
violation ofRCW 54.16.140, (b) by including zero ($0) assessment
properties within LUD #14 in its protest percentage calculations and (c) by
including parcels that are exempt from assessment in its protest percentage
calculations?
Public utility districts have jurisdiction to establish water distribution systems.
PUDs may establish LUD districts upon receiving a petition by not less than 10% of the
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property owners within the proposed district, or they may issue a resolution on their
own to establish an LUD. When the PUD on its own resolves to establish an LUD its
jurisdiction and ability to create the LUD may be divested if"a majority of the owners
oflands in the district file prior to 12:00 noon of the day ofthe hearing, with the
secretary a petition protesting against the improvement." RCW 54.16.140
The formation of an LUD for Marrowstone Island residents is clearly an issue
which is controversial amongst the property owners who would be impacted by the
construction of the water distribution facility. In this instance a sizeable number of
property owners protested the formation of the LUD. The public utility district
determined to allow one protest vote for each parcel of property within the proposed
improvement district. RCW 54.16.140 states that an LUD cannot be ordered if"a
majority of the owners of lands in the district" file a protest. The statute does not define
its terms and is a model of imprecision. The PUD, noting that each of the legally
described parcels would be viewed separately for LUD assessment purposes, and noting
that RCW 54.16.142 referred to notices given within LUD formation to be provided to
"the owners of specific lots, tracts, or parcels ofland.. .", determined to count the
protests by assigning a "1 owner's vote" to each parcel of property. Within the
proposed LUD there are 915 separate parcels of property as described in the title
records of Jefferson County. Of the total of915 parcels, owners of 410 parcels lodged
protests which appear to be authentic. This included 9 protests by owners who had later
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rescinded their protest vote. The Declaration of Jim Parker indicates that 113 protests
came from owners of multiple parcels. These 113 protests were filed on behalf of 79
total property owners. Mr. Parker says he also counted the protests based upon total
owners. He found there were 660 total owners of parcels within the LUD. Of the 660
owners, 297 protested the LUD. The PUD determined that 43 parcels ofland were less
than .3 acres in size, the size likely to be developable. Thirty-eight of these parcels
were estimated to be non-developable and provided preliminary assessments of zero.
Nineteen of those 38 parcels nevertheless filed protests to the formation of the LUD.
(Each owner was provided the statutory notice that the preliminary assessment might
change). Mr. Parker's affidavit also indicates that 35 parcels ofland were designated as
open space and would therefore be exempt. Nevertheless, 20 of those 35 parcels
protested the formation of the LUD. The Plaintiffs have submitted no numbers which
would contravene the numbers provided by Mr. Parker in his affidavit. Additionally the
Plaintiffs have not submitted any information indicating that a person owning an
exempt lot or lot whose proposed assessment was zero, would have protested but for the
exemption or zero preliminary assessment.
All of the arguments relating to the protests can be subdivided into two
categories. The first argument is that the PUD used a "fundamentally wrong basis" for
its calculation of protests. In Abbenhaus v. City of Yakima, 89 Wn.2d 855, 576 P.2d
888 (1978), the issue was whether or not a landowner who questioned the propriety of a
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local improvement district assessment was able to show that the city's assessment was
either arbitrary and capricious or computed on a fundamentally wrong basis.
The Court noted that the applicable standard of review was an arbitrary and
capricious standard. The Abbenhaus Court noted this standard has a well established
meaning in the State of Washington and referred to "willful and unreasoning action
taken without regard to or consideration of the facts and circumstances surrounding the
action." The Abbenhaus Court noted that where there was room for two opinions, an
action taken after due consideration is not arbitrary and capricious even though a
reviewing Court might believe it to be erroneous. The Abbenhaus Court noted that the
"fundamentally wrong basis" test is less well defined. The Court noted that in
Cammack v. Port Angeles, 15 Wn.App. 188,548 P.2d 571 (1976) the Court of Appeals
had held that phrase "refers to some error in the method of assessment or in the
procedures used by the municipality, the nature of which is so fundamental as to
necessitate a nullification of the entire LID, as opposed to a modification of the
assessment as to particular property." The Abbenhaus Court agreed with that definition
and adopted it. The Court noted that the scope of review under either the
"fundamentally wrong basis" or "arbitrary and capricious" standards involved
reviewing the actions taken by the municipal corporation rather than the Court's own
independent decision regarding the most desirable method of assessment. The Superior
Court is therefore required to consider the material presented to the municipal body and
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determine whether it adequately supports the action of the municipality. Review is
limited to the record of the proceedings before the municipality. (here, the PUD)
As indicated, the statute is imprecise in its terminology. Within its first
paragraph under the petition method, it refers to a petition signed by 10% of the owners
ofland (singular). Then in referring to protests it refers to "a majority ofthe owners of
lands" (plural). It could be argued that the majority of the owners of "land" would refer
either to total volume, or perhaps to total assessed value and the like. The owners of
"lands" language more likely would refer to individual tracts or parcels. A number of
problems arise from the statutory language. In a community property state, marital
entities are usually undivided owners ofland. What happens if one of the marital
partners wishes to protest a LUD and the other does not? What if it is a joint tenancy or
tenancy in common ownership?
The question before the Court is whether or not the PUD' s decision to calculate
the percentage of protests by granting one protest vote to the owners of each parcel of
property is a fundamentally wrong basis. It does not appear to the Court that the
method was fundamentally wrong and while it is debatable as to whether it should be
the preferred method, it is nevertheless within methods which might be arguably
appropriate. This Court cannot substitute its judgment for the judgment made by the
PUD commissioners who were elected precisely to make such judgments on behalf of
the municipal corporation, unless their decision was willful and unreasoning without
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regard to the facts and circumstances, at issue, or simply fundamentally wrong. The
decision to count one protest per parcel is not without reason. .
The second general issue raised in connection with the count of the protests is
that by including both exempt parcels and parcels for whom the preliminary assessment
was zero, that the PUD acted in a manner to control the power granted to property
owners to protest and thereby limited the percentage of protests.
The Plaintiffs allege that the owners of 78 parcels should not have been allowed
to protest. (The PUD alleges there are 77 such parcels). The information before the
Court is that 39 of such parcels did protest the formation of the LUD. This is 50%. If,
as Plaintiffs argue, those parcels should not have been counted the percentage of
protests actually decreases from that calculated by the PUD. As indicated the same is
true even if the Court were to adopt the Plaintiffs' argument that each owner of property
would be allowed one protest vote regardless of the number of parcels owned. The
result would still be protests filed by a minority of the "owners" within the proposed
LUD. The numbers submitted by Mr. Parker, no matter how construed under the
arguments made by Plaintiffs, do not result in a realistic scenario where a majority of
the owners of property located within the proposed LUD have filed protests.
The Plaintiffs present no evidence that additional protests would have been filed
by the owners of exempt or non-assessed property. The burden in this instance is upon
the Plaintiffs to put forth evidence to indicate that the method used by the public utility
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district resulted in a fundamentally unfair process. The evidence before the Court does
not show that such is the case. Even if 90% of the exempt and zero assessment parcels
protested, the number would be insufficient under any definition of "owner" suggested
by either party to reach the majority required to preclude the PUD from proceeding.
The record also reflects quite clearly that this matter was hotly contested and of
great public visibility and it is unlikely, in the opinion of the Court, that owners of
property on Marrowstone Island within the proposed LUD were unaware that the matter
was pending. That being the case, it is inconceivable that the method adopted by the
PUD was purposely designed to limit property owners' ability to protest the LUD if
they desired to do so. Because the issues raised relating to protests could not, under
any reasonable hypothetical scenario, result in sufficient protests having been filed to
invalidate the ability of the PUD to form the LUD, the issues relating to such protests
must be resolved in favor of the PUD and the cause of action related thereto is hereby
dismissed.
ISSUE NO.3: The formation of LUD #14 was invalid because the PUD
violated RCW 70.116.060 by failing to follow Jefferson County's
coordinated water system plan and the PUD's own water system plan.
The PUD acknowledges that its actions are subject to Chapter 70.116 of the
Revised Code of Washington, the Public Water System Coordination Act. The
Plaintiffs allege that the PUD is in violation of that Act.
RCW 70.116.060(1) states:
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"A coordinated water system plan shall be submitted to
the secretary for design approval within two years of the
establishment of the boundaries of a critical water supply
service area."
All of Jefferson County and therefore Marrowstone Island was designated a
critical water supply service area in 1983. Jefferson County adopted a coordinated
water system plan which was last updated in 1997. RCW 70.116.050(1) states that:
"Each purveyor within the boundaries of a critical water
supply service area shall develop a water system plan for
the purveyor's future service area if such a plan has not
already been developed. ..".
The PUD has adopted its own water system plan which was approved on March
23, 1998.
RCW 70.116.070(1) defines "service area" as a specific geographical area
serviced or for which service is planned by a purveyor.
RCW 70.116.060(3) reads in pertinent part as follows:
"(3) Following the approval of a coordinated water
system plan by the secretary:
(a) All purveyors constructing or proposed to construct
water public system facilities within the area covered by
the plan shall comply with the plan."
The Plaintiffs allege that by forming LUD #14 the PUD is unquestionably
proposing to construct a public water system facility. At the time of the formation of
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LUD #14 neither the county's plan nor the PUD's plan specifically designated
Marrowstone Island as part of the PUD' s current or future@ervice area. The
Plaintiffs allege therefore that at the time the LUD was formed the PUD was not in
compliance with either Jefferson County's coordinated water system plan or the PUD's
own water service plan. The PUD has applied to update its water service plan and
submitted a map to the Department of Health on March 4,2004 which shows Fort
Flagler as part of the PUD's current service area and the remainder of Marrows tone
Island as part of its future service area.
The PUD also indicates that it is in the process of seeking to modify Jefferson
County's Coordinated Water System Plan to put the proposed LUD in compliance with
the plan. The PUD' s position is that as long as the pertinent plans are amended prior to
commencement of construction of the L UD improvements the statutory requirements
will have been met.
There are no reported decisions addressing the specific issue whether or not
LUDs may be formed prior to amendment of the water service plans required under
RCW 70.116. The statute does not directly address the issue.
This issue can easily be summarized as to whether or not the law requires a
public utility district to amend the Water System Coordination Plan prior to approving
formation of an LUD, or whether the law requires only that the plan be amended prior
to construction of the improvements contemplated following LUD formation.
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In order to determine what the law requires it is often appropriate to look to the
purposes of the law.
RCW 70.116.010 states in pertinent part:
"The Legislature hereby finds that an adequate supply of
potable water for domestic, commercial and industrial use
is vital to the health and well being of the people of the
state. Readily available water for use in public water
systems is limited and should be developed and used
efficiently with a minimum of loss or waste.
In order to maximize efficient and effective development
of the state's public water supply systems, the Department
of Health shall assist water purveyors by providing a
procedure to coordinate the planning of the public water
supply systems."
At RCW 70.116.020 more specific purposes of the statute are listed. RCW
70.116.020(2) reads:
"To provide for the development of minimum planning
and design standards for critical water supply service
areas to ensure that water systems developed in these
areas are consistent with regional needs;"
RCW 70.116.060(6) states:
"After adoption of the initial coordinated water system
plan, the local legislative authority or the secretary may
determine that the plan should be updated or revised. The
legislative authority may initiate an update at any time,
but the secretary may initiate an update no more
frequently than once every five years. The update may
encompass all or a portion of the plan, with the scope of
the update to be determined by the secretary and the
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legislative authority. The process for the update shall be
the one prescribed in RCW 70.116.050."
The process ofRCW 70.116.050 requires each purveyor to adopt a water system
plan for future service areas and further requires that any plan or amendments
incorporate proper designs to protect public health and to ensure that such plans are not
inconsistent with land use plans, shoreline master programs and the developmental
policies of the general purpose local government or governments whose jurisdiction the
water system plan might affect.
In determining the intent of a statute it is also appropriate for a Court to look to
the manner in which the agency charged with administering the statute interprets it.
The statute allows the secretary of the Department of Health to adopt regulations to
implement and supplement the law. These rules are codified in the Washington
Administrative Code (WAC). The Washington Administrative Code provisions relating
to this particular timing issue are of some assistance. WAC 246-290-110 identifies a
"project report" process. It relates to water system improvements proposed by
purveyors. It states:
"The project report is a written document that describes
why a project is being proposed and includes engineering
design calculations showing how the project will meet its
objectives."
Subsection 2 reads:
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"The purveyor shall submit project reports to the
department and receive written approval prior to
installation or construction of any new water system,
water system extension or improvement..." (emphasis
added)
Subsection 3 reads:
"Project reports submitted for approval by purveyors who
are required to have a water system plan will not be
considered for approval unless a current, approved water
system plan that adequately addresses the project is on
file with the department. In the event that a purveyor of
an existing system does not have such a plan, the
department may enter into a compliance agreement with
the purveyor that grants a time extension to complete the
water system plan."
It is clear under the WACs that the PUD may not construct a water system
utility until such time as an appropriate plan is in place (or under process) pursuant to
RCW 70.116.060. It seems clear that the WACs do not contemplate a requirement that
the coordinated water system plan be in place prior to consideration of an improvement,
but rather, that the plan must be in place prior to construction. This makes sense. The
purposes of the statute are easily met by precluding construction of a water system
improvement until such time as the planning coordination has taken place. If the PUD
is unable to convince the appropriate jurisdictional agencies that the Marrowstone
Island LUD is appropriate and meets the purposes of the water use coordination statute,
the improvements will not be constructed despite the resolution to form the LUD. On
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the other hand, if the PUD had been unable to proceed to LUD formation due to a
sufficient number of protests being filed, for example, there would be no need to amend
the water system coordination plan. It makes little difference for the purposes of the
Water System Coordination Act whether the PUD chose to proceed to amend the plan
first, or instead choose to determine the viability of the proposed LUD first.
The Court fmds that formation of the LUD is not precluded even though at the
time of the formation of the LUD the specific improvements contemplated were not
within the specific provisions of the public water system coordination act or the PUD's
own water service plan. Those plans must be amended, however, prior to any
construction of the proposed LUD.
ISSUE NO.4: The formation of LUD 14 was invalid because the exclusion
of Fort Flagler from the LUD was arbitrary and capricious.
RCW 54.16.120 is the statue which authorizes a district to establish and define
the boundaries of local assessment districts. That statute authorizes a district to levy
and collect "in accordance with the special benefits conferred thereon" assessments and
reassessments on "property specially benefited thereby, for paying the cost and expense
thereof, or any portions thereof, as herein provided.. ."
Plaintiffs argue that the property of Fort Flagler, a Washington State Park, was
excluded from the LUD even though it will be specially benefited by the LUD. The
LUD contemplates using water distribution facilities currently owned by the State Parks
Department (an underwater transmission line to Marrowstone Island) and using
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improved facilities to be erected on the State Park property (increased looped and
updated water lines and a larger storage tank) to be included with in the LUD. The
PUD also contemplates at some point in the future taking over the water service to the
State Park. The PUD has entered into separate negotiations with the State Parks
Department to accomplish those ends.
The Plaintiffs point out that the LUD authorizing statute suggests that the LUD
standards be amplified by reference to statutes related to local improvement districts
formation for cities and towns. They point out that RCW 35.43.080 requires that every
ordinance ordering a local improvement "to be paid in whole or part by
assessments.. .may establish a local improvement district. . . which shall embrace as
nearly as practicable all of the property specially benefited by the improvement."
Plaintiffs argue that the exclusion of the State Park property means that the LUD
does not include "as nearly as practicable" all of the property that would be specially
benefited by the proposed LUD 14 improvements. In City of Spokane v. Miles, 72
Wn.571, 573, 131 P.206 (1913) the State Supreme Court noted:
"Assessment districts must have a point of beginning and
a point of termination. The fixing of these extremes often
presents many perplexing questions upon which there
would be a never ending variety of opinion. It is,
therefore, of the first importance that some definite rule
be laid down for the guidance of trial courts. The best
rule that has been announced, and the only practicable
working rule, is that the court should not change the
district established by the commissioners, except where
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the commissioners have acted arbitrarily or fraudulently
or have proceeded on a fundamentally wrong basis."
The City of Spokane case involved street improvements and there was a dispute
as to what portions of the City would be benefited by the construction of the street
improvements. The Petitioners argument in the Spokane case was that the assessment
roll was improper because all of the property benefited by the improvement was not
within the district and accordingly a part of the cost of the improvement should have
been assessed to others.
The Plaintiffs note that the fact a PUD is given latitude when setting LUD
boundaries does not necessarily mean that it has discretion to exclude benefited
properties. The Plaintiffs cite the following: :
"But, without inquiring into the extent of these
limitations, we think that under these authorities it can be
laid down as a general rule that a city, in an ordinance
initiating a public improvement, when empowered
expressly to do so by the Legislature, may fix the
boundaries of the district that shall be assessed to pay the
cost of the improvements. It is not to be understood,
however, that the city can, even though directly
authorized to do so by the Legislature, levy the entire
costs of the improvement on the district so fixed in the
initiatory ordinance, regardless of the question of
benefits." In Re Eighth Avenue Northwest and City of
Seattle, 77 Wn. 570, 138 P.10 (1914) at page 575.
The PUD states that there is a fundamental difference between an LUD
formation hearing and a hearing to establish the assessment roll. The PUD notes that
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the latter is a quasi-judicial hearing or a mini "trial" on the issues of special benefits and
proportionality. In contrast, at a hearing regarding the formation of an LUD the PUD
commissioners do not consider the specific amount of assessments or whether each
property has received special benefits from the proposed project. The purpose of a
formation hearing is not to accord a hearing on the validity of the assessment, but rather
to accord a hearing upon the geographical limits of the proposed district and upon the
question of whether the district should be formed at all.
The PUD argues that the LUD improvements will not furnish Fort Flagler with
anything which it does not already have. They argue that Fort Flagler is, in fact,
furnishing the LUD with easements and water system components at less cost than
would otherwise be incurred, likely resulting in a decrease in the final LUD #14
assessment roll.
The PUD notes that the special nature of Fort Flagler, being a state owned parcel
with an existing water service, creates a situation that would readily allow for a
debatable argument as to whether or not Fort Flagler should have been included within
LUD #14 or not. Neither the exclusion nor inclusion of the state park area would have
changed whether the number of protests was sufficient to divest the PUD of
jurisdiction. Rather the argument is that the assessments will be increased as the result
of the failure to include Fort Flagler. As pointed out in the PUD's briefmg, different
standards apply to those issues. The current decision being challenged is a Legislative
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decision. Accordingly, ifthere was reason behind the Legislative decision made, it is
not for Courts to determine that the decision would have been better made in another
fashion. It is only if a Court can say as a matter of law that the action was arbitrary
and/or unreasonable, that the Court could overturn the formation decision made.
To the extent a challenge is ultimately made to the fmal assessment roll it
matters little that Fort Flagler is or is not included with the LUD. Each Marrowstone
Island parcel within the LUD will be assessed based upon the special benefit to that
parcel. A party who believes that their assessment should be lower because of a benefit
received by the Fort Flagler parcel will not be precluded from making that argument
just as it was made in the City of Spokane case. The PUD is not required to charge all
of the improvement cost to the parcels within the LUD and may in fact contribute a
portion of the cost on its own. Because Fort Flagler is a state agency it would not be
irresponsible for the PUD to negotiate with that particular agency to receive in-kind
benefits as it has.
In summary, it appears to the Court that this particular issue is more
appropriately treated as an assessment issue rather than a formation of the LUD issue
and, to the extent that the Plaintiffs are in any way impacted in the amount of their
assessments that matter necessarily must be dealt with at a later time when the
assessment roll is established.
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Accordingly, the Court fmds that the exclusion of Fort Flagler from the LUD
boundaries was not an arbitrary and capricious act and Plaintiffs' Motion for Summary
Judgment on that issue is granted.
ISSUE NO.5: The formation of LUD 14 was invalid
because the PUD violated the Open Public Meetings Act.
The Open Public Meetings Act of the State of Washington is codified at Chapter
42.30 of the Revised Code of Washington. The State has declared that it is the purpose
of that Act that actions of governmental agencies be taken openly and that deliberations
upon issues before them also be conducted openly.
The Plaintiffs allege that the PUD Board of Commissioners violated the Open
Public Meetings Act in a number of manners. The Plaintiffs however indicate that
although it alleges certain actions were in violation of the Open Public Meetings Act,
that those inappropriate actions would not invalidate later final actions which were
taken in compliance with the Act. Plaintiffs therefore state that the only issue the Court
need address under the Open Public Meetings Act issue is whether the formation
hearing for LUD 14 met the requirements of the Act. Plaintiffs allege it did not.
Plaintiffs allege that the formation hearing for LUD 14 did not take place in one
meeting. They note that the public hearing was originally opened on April 6, 2004, at a
special meeting of the PUD. The Board of Commissioners heard testimony from a
large number of witnesses. The Board then voted to "adjourn" the hearing. The PUD
resumed its deliberations on the formation ofLUD 14 the next day, at a regular meeting
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of the Board. At that meeting the Board heard from PUD manager Jim Parker regarding
the protest percentages and heard additional evidence from a number of persons,
including Jared Davis from the Department of Health Office of Drinking Water. At the
end of this meeting the Board took no final action and again voted to "adjourn". On
April 14, 2004, at a special meeting ofthe PUD Board called for the sole purpose of
considering the formation of the LUD the Board again accepted testimony and evidence
from PUD manager Jim Parker and other property owners. At the end of that meeting
the Board voted to proceed with the LUD but did not take [mal action. The Board again
voted to "adjourn" the meeting. On April 21, 2004, at a regularly scheduled meeting
the Board formally passed Resolution #2004-009.
Plaintiffs argue that the PUD did not follow the statutory requirements for
continuing or adjourning a meeting. They note that RCW 42.30.100 states:
"Any hearing being held, noticed, or ordered to be held
by a governing body at any meeting made by order or
notice of continuance to be continued or recontinued to
any subsequent meeting of the governing body in the
same manner and to the same extent set forth in RCW
42.30.090 for the adjournment of meeting."
The pertinent provisions ofRCW 42.30.090 are as follows:
"Whenever any meeting is adjourned a copy of the order
or notice of adjournment shall be conspicuously posted
immediately after the time of the adjournment on or near
the door of the place where the.. .meeting was held."
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Plaintiffs argue that the failure of the PUD to post such a notice of continuance
or adjournment renders formation of Resolution #2004-009 null and void.
Plaintiffs point to RCW 42.30.060 which states:
"No governing body of a public agency shall adopt any
ordinance, resolution, rule, regulation, order, or directive,
except in a meeting open to the public and then only at a
meeting, the date of which is fixed by law or rule, or at a
meeting of which notice has been given according to the
provisions of this chapter. Any action taken at meetings
failing to comply with the provisions of this subsection
shall be null and void."
A public hearing is required in order for an LUD to be formed by resolution of
the PUD commission. RCW 54.16.140 requires that at least two weeks notice be
provided by publication of such a public hearing. A second required hearing will occur
prior to approval of the assessment roll following construction of an LUD utility.
Here, the public hearing was held pursuant to appropriate notice. The PUD
claims the public hearing was closed as there was no one else wishing to provide
testimony. Plaintiffs allege that if in fact the public hearing was closed it was then
inappropriate for the PUD Commissioners to receive further information from their staff
and others at subsequent meetings. Plaintiffs allege that the taking of additional
information on the proposed LUD after the close of the scheduled hearing would be in
violation of the Open Public Meetings Act.
The issue may perhaps best be decided by recognizing the nature of the hearings
which are called for under the LUD statutory method. The first hearing relates only to
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formation of the district. This is a Legislative decision. This hearing is required to
allow the board to receive public input, and also sets the deadline upon which those
wishing to protest formation of an LUD may file their protests. The purpose of such a
Legislative public hearing is to obtain public input on matters of broad policy. Under
the LUD statute it is the second mandated hearing on the assessment roll which will
affect individual property rights and accordingly these later hearings are quasi-judicial
hearings. Quasi-judicial hearings require an opportunity for the party to be affected to
be heard and to be able to hear and respond to anyone expressing a competing point of
view which might impact that person's property rights. Quasi-judicial hearings, like
proceedings in Court, are required to take place in the presence of the parties affected,
or at least with appropriate due process notice provided to allow an opportunity for the
parties to be present. Plaintiffs' argument seems to be that hearings on the formation of
the LUD similarly, must provide specific notice so that parties who might be affected
by the decision to form the LUD would have specific notice oftimes at which any
information pertaining to the LUD might be provided to the PUD Commissioners.
Neither the Open Public Meetings Act, nor RCW 54.16 requires that type of notice at
LUD formation stage.
RCW 54.16 requires a public hearing prior to the decision to form an LUD.
Such a public hearing occurred. There is no evidence that any person wishing to
comment was not allowed to comment. The Open Public Meetings Act requires that all
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meetings at which Legislative decisions are discussed or acted upon occur in public
with notice to the public that such a meeting is to occur. To occur in public generally
means to occur at a regularly scheduled meeting of the Board or Agency or to occur at a
specially called meeting when appropriate notice has been provided. Under the Open
Public Meetings Act the primary requirement for regularly scheduled meetings is that
they be open to the public. Notice of specific agenda items is required only for special
meetings. See Dorsten v. Port of Skagit County, 32 Wn.App. 785, 650 P.2d 220 (1982).
There is no indication from the Plaintiffs that any of the meetings at which the LUD
was discussed were not appropriately called under the Open Public Meetings statute as
either a special meeting ofthe PUD Board or as a regularly scheduled meeting of the
Board. Because the decision to form the LUD was not a quasi-judicial decision there is
no requirement of particularized special notice to the landowners of Marrowstone
Island beyond the notice required to establish the initial hearing on formation. Because
it was a Legislative as opposed to quasi-judicial act which was being considered there
was no prohibition to the Commissioners receiving information subsequent to the
closing of the public hearing, provided that the information they received and
subsequent action be taken only at a regular or specially called meeting open to the
public. This is what, in fact, occurred.
To escape summary dismissal of an Open Public Meetings Act claim a Plaintiff
must produce evidence showing: (1) that members of a governing body (2) held a
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meeting of that body (3) where that body took action in violation of the Open Public
Meetings Act, and (4) that the members of that body had knowledge that the meeting
violated the statute. Eugster v. City of Spokane, 118 Wn.App. 383, 76 P.3d 741 (2003)
There is no indication that the Commission received information, discussed such
information, or took any action outside of public meetings. Absent such an indication
the Open Public Meetings Act has not been shown to have been violated. Summary
Judgment, accordingly, on this issue is granted to the Defendants.
ISSUE NO.6: The formation of LUD #14 was invalid because RCW
35.44.047 violates Plaintiffs' procedural due process rights under the State
and Federal constitutions.
RCW 54.16.140 allows a public utility district commission to order LUD
improvements following a public hearing, ifthere are not sufficient protests to divest
the commission of that authority. That statute further states:
"If the commission orders the improvement, it may alter
the boundaries of the proposed local district and prepare
and adopt detailed plans of the local improvement,
declare the estimated cost thereof, what proportion
thereof shall be borne by the local improvement district,
and what proportion, if any shall be borne by the entire
public utility district."
RCW 54.16.142 states:
"Any notice given to the public or to the owners of
specific lots, tracts, or parcels of land relating to the
formation of a local utility district shall contain a
statement that actual assessments may vary from
assessment estimates so long as they do not exceed a
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figure equal to the increased true and fair value the
improvement.. . adds to the property."
After formation and construction of an LUD RCW 54.16.160 requires the PUD
to establish an assessment roll, which will describe the exact assessment to be borne by
each parcel of property. Before approval of the final assessment roll the statute requires
notice to be published to allow protests to be filed against the assessments. The PUD is
required to set a time for a hearing held by the PUD commission on the protests. After
such hearing the commission is given power to "alter any and all assessments shown on
the roll and may, by resolution, approve it, but if an assessment is raised, a new notice,
similar to the first shall be given, and a hearing had thereon, after which the fmal
approval of the roll may be made." RCW 54.16.160
The statute further allows any person aggrieved by a final assessment to appeal
to the Superior Court of the county in which the LUD is located. As indicated
previously, Public Utility Districts are to use the statutory procedures set out for City
local improvement districts when practicable. RCW 35.44.047 states in pertinent part:
"Notwithstanding the methods of assessment provided in
RCW 35.44.030, 35.44.040 and 35.44.045, the City or
Town may use any other method or combination of
methods to compute assessments which may be deemed
to more fairly reflect the special benefits to the properties
being assessed.. .. The failure of the council to
specifically recite in its ordinance ordering the
improvement and creating the local improvement district
that it will not use the zone and termini method of
assessment shall not invalidate the use of any other
method or methods of assessments"
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Plaintiffs argue that because the PUD is not required to impose assessments
which use either the same general basis or arrive at the same amounts as that set out in
the preliminary estimate provided to property owners on Marrowstone Island, that such
landowners were denied procedural due process rights. Essentially the argument is, that
because the owners were told that their assessments would be of a certain amount and
yet the final assessments may well be quite different, that landowners who might
otherwise have protested were denied an opportunity to receive truly meaningful notice
so as to allow them to determine whether to protest or not.
Plaintiffs acknowledge that the procedure used by the PUD in this instance met
the statutory requirements, but argues that the statute itself and the manner in which it
was applied in this instance violates the Plaintiffs' procedural due process rights under
State and Federal constitutions. The PUD argues that this issue is premature and can
only be raised at the time of the confirmation hearing relating to the final assessment
roll.
To the extent that the argument is to challenge the method used by the PUD to
calculate the preliminary assessments, the PUD is correct and a challenge to the
constitutionality of the statute is not timely. Because the PUD may change both the
total amount of the assessment, and the method of assessment, as well as the specific
assessment to each parcel prior to creating the final assessment roll, such a challenge
might well be rendered moot by subsequent actions. In Citizens for Underground
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Equality vs. City of Seattle, 6 Wn.App. 338,492 P.2d 1071 (1972) the Court noted that
"certain consequences attached to the fact that this is an appeal from a decision of the
City Council creating the local improvement district, and not an appeal from the
confirmation of an assessment roll. At this stage of the proceedings the appellants can
only challenge the "jurisdiction or authority" of the City Council to proceed with
creating the district." Underground Equality, supra, at page 342. (emphasis in the
original text)
The Court, however, goes on to clarify by stating:
"Appellants cannot at this time contest the validity or
amounts of the special assessments, nor can they question
whether the benefits are special or general. These
questions can be raised only at the subsequent hearing on
the assessment roll." Underground Equality, supra at
page 342.
In Heavens v. King County Rural Library District, 66 Wn.2d 558, 44 P.2d 453
(1965) the State Supreme Court allowed a constitutional challenge to be made at the
formation stage of a Local Improvement District. The action in Heavens was
commenced under the Uniform Declaratory Judgments Act. The Court noted the
distinction between the common objections to assessments for public utilities awaiting
the assessment roll and the issue before it in Heavens.:
"With this we have no quarrel; there is an adequate
remedy by appeal by a property owner once the
assessment roll has been cast. RCW 56.20.080.
Excessiveness of the assessment is not the question of the
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instant case. The question is the constitutionality of any
special assessment for the purpose stated." (Heavens,
supra at 562)
In Heavens the Plaintiffs objected to the use of the LID proposed for the
establishment ofa public library. The Heavens Court noted:
"Special assessments to pay for local public
improvements benefiting specific land are of ancient
lineage. They have been held valid for the construction
and improvement of streets, curbs, gutters, sidewalks, and
for the installation of sanitary and storm sewers, drains,
levies, ditches, street lighting, and water mains.. .All such
assessments have one common element: They are for the
construction of local improvements that are appurtenant
to specific land and bring a benefit substantially more
intense than is yielded to the rest of the municipality. The
benefit to the land must be actual, physical and material
and not merely speculative or conjectural."
The Court went on to note the basic premise of an LUD or LID which is that
there can be no special assessment levied to pay for something which has conferred no
special benefit upon the property being assessed. The issue which can be decided at
this stage of these proceedings is not whether the proposed LUD improvements are wise
or unwise; whether the cost exceeds the potential benefits on a general basis, or whether
or not the cost proposed to be assessed to each owner of property exceeds the value of
the benefit that property will receive. Rather, the sole constitutional issue which is
timely, is expressed in the Plaintiffs' language as follows:
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"The ability of the PUD to change the LUD assessment
method adversely affects the property owner's ability to
divest by protest the PUD's authority to proceed with the
proposed improvements." (Plaintiffs' response to
Defendants' motion for summary judgment, page 39.)
There are two statutory limits on the ability of the PUD to change the LUD
assessment levied against each parcel. First, the actual assessments may vary from the
preliminary assessment estimates only so long as they do not exceed a figure which is
equal to the increased true and fair value the improvement adds to the property. The
second restriction which is established more by case law is that any formula used for
assessing property within the improvement district must "ultimately relate to benefit,
not merely the distribution of costs." Bellevue Plaza Inc. v. City of Bellevue, 121 Wn.
2d 397,851 P.2d 662 (1993) at page 415.
Plaintiffs note here that the preliminary assessment is based on a flat per parcel
charge of $6,020. Plaintiffs note a number of issues which may ultimately result in a
different formula being used by the PUD to establish the assessments for each particular
lot. It is not unreasonable to assume that the preliminary estimates may in fact, change
and perhaps change dramatically when the PUD considers the final assessment rolls.
The argument of Plaintiffs is that because the individual assessments may vary
dramatically that some parcel owners who might otherwise have protested, were misled
by the preliminary estimate and as a consequence, failed to protest as they would have
had the preliminary estimate provided to them been more realistic.
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Plaintiffs allege that this is a "bait and switch" technique that constitutes a
failure of procedural due process in connection with the establishment of the LUD and,
accordingly, is ripe for analysis at this time. The Court agrees with Plaintiffs that this
matter is appropriate to discuss in connection with the summary judgment motion on
the formation of the LUD issues.
Procedural due process is guaranteed citizens of the United States by the 14th
Amendment to the United States Constitution and under Article I, Section 3 of the
Washington State Constitution. Paraphrasing from Mullane v. Central Hanover Bank
and Trust Company, 339 U.S. 306, 314, 94 L.Ed. 865, 70 S.Ct. 652 (195) it has been
held that procedural due process requires that prior to any governmental action which
will have a direct and adverse affect upon a person's interest in life, liberty, or property
the government must provide notice which is reasonably calculated under the
circumstances to apprise the person of the pendency of the action and to afford an
opportunity to present objections to the agency.
RCW 54.16.142 requires that any notice given to the public or owners of
specific lots within a proposed LUD contain a statement that the actual assessments
may vary from the preliminary assessment estimates. Here the required publication of
notices was provided, and individual notices were provided to each of the owners of
property within the proposed LUD. There is no indication that there was a failure to
give the statutorily required notice nor that notice was not provided by the PUD of their
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intent to form the LUD district. Exhibit L to the Declaration of Jim Parker, the manager
ofPUD #1 is a letter dated October 23,2002 to each Marrowstone Island property
owner. In substantial detail it outlines the procedure which.is intended to be followed
and indicates that a single uniform hookup fee will be the likely criteria for assessment
of costs. The letter notes that the frontage/acreage method is believed to be too
complicated and that an "actual appraisal" method would be too expensive. The letter
indicates that the assessment will "hopefully" be under $5,000 for those wishing to
connect to the system.
By subsequent letter dated February 26,2003, and attached as Exhibit M to Mr.
Parker's affidavit each owner was sent an update which again discussed potential
assessments to lot owners. Exhibit I to Mr. Parker's deposition is dated January 26,
2004, and is the formal notice of the public hearing to consider formation ofLUD #14.
In pertinent part it says:
"For the purpose of this notice, the PUD is required by
law to determine a good faith estimate of assessments. In
order to determine the good faith estimate of assessments,
the PUD has determined the number of parcels that will
benefit from the system and has ascribed an equal benefit
share to all the parcels, subject to modification based on a
showing that a particular parcel has an existing water
supply due to a good well system and the owner does not
want to connect to the system. The estimated assessment
to be levied against your parcel is as set forth below."
(The assessment estimate set forth below as $6,020.)
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The letter continues to note that the fmal amount of the assessment can only be
determined after all construction has been completed and costs known. The letter
states:
"Further, for the final assessment roll, the PUD may use
any other method of assessment deemed to more fairly
reflect the special benefits to the properties being
assessed. However, the PUD would not do so unless
convinced by compelling reasons that another method
meets this standard. Accordingly, the actual assessment
levied against your property for the LUD may vary from
this assessment estimate, so long as it does not exceed a
figure equal to the increased true and fair value the
improvement adds to your property."
Plaintiffs argue that the notice of the proposed formation of the LUD failed to
give property owners sufficient information to allow them to intelligently determine the
consequences of failing to protest the LUD formation. To the extent that the argument
is that the notice was defective under the statute, it is hard to conceive of how a more
clear recitation of the LUD assessment procedure and potential consequences could
have been given by the PUD to each property owner to meet the statutory notice
requirements.
To the extent that the argument is that the statute is unconstitutional on its face,
in that it contemplates a potential change of assessment, Plaintiffs' burden is severe.
Statutes are presumed to be constitutional. Plaintiffs' argument cannot be that
property owners did not know that the preliminary estimate could change, but rather
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that they did not know to what degree it might change. Were unbridled changes to the
assessments authorized by the statute, one might well conclude that the statute was
unconstitutional. However, there is a limitation. That limit is that the assessment can
never exceed the actual benefit provided to the individual property. In other words, if
the improvement does not increase the value of the individual property in an amount at
least equal to the assessment, the property owner has a means for redress and for
revision of the assesment. It is this limitation which, in the opinion of the Court, keeps
the statute from being unconstitutional and from providing an "illusory" preliminary
estimate. Public improvements are, as everyone will acknowledge, appropriately
constructed from time to time. When the public improvements benefit a limited class of
property owners, few would dispute that such property owners should provide for the
costs of those benefits. Where the requirement to provide for the costs is limited so the
cost imposed cannot exceed the value of the improvement to the property owner having
the ability to form such a district and proceed to construction with some flexibility
between the preliminary assessment estimate and the ultimate actual assessment is
reasonable. When landowners are clearly told of this potential flexibility and limitation
in advance, it is hard to see where procedural due process issues is violated.
The Court's decision in this instance is limited to whether or not the procedures
set forth for LUD formation meet constitutional due process mandates. Neither
individual assessments nor the general method of assessment used is an issue presently
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before this Court. For purposes ofLUD formation, the Court finds the procedure set
out by statute and used by the PUD is constitutional.
III. CONCLUSION:
In representative government we elect officials to represent the interests of the
public. The public from time to time has inherently conflicting interests. We have
constitutional protections to ensure that certain rights will not be unreasonably
interfered with. Representative government officials have established by legislation a
procedure by which Public Utility Districts may extend potable water services to
properties within their jurisdiction. Those elected representatives have also provided a
method whereby those property owners who are served by such a potable water
distribution system will provide for or assist in the costs of establishment of such a
system. It would make little sense to build water distribution systems which were
available to serve only intermittent properties within the district formed. The
legislation requires that at least half of the property owners within a proposed district
not protest the creation of the district. The law then relies on other elected
representatives of government, the public utility district commissioners, to decide if the
improvement is appropriate and to decide what method of assessment should be used in
order to allow construction of the improvements. Their discretion is limited to ensure
that there is no unconstitutional taking of private property without adequate
compensation, and that the rights of property owners are not unfairly impacted in any
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manner causing the charges to exceed the benefits. In this particular case the statutory
procedures have been followed. More than in most instances, parties of divergent views
have had a fair opportunity to present those views to their elected representatives.
There will be further opportunity to contest the costs which are to be imposed by
assessment should those costs be unfair. Those who were voted into office to exercise
local discretion in connection with water services, have exercised their discretion to
proceed on a project which is controversial and favored by some and disfavored by
others. In their representative capacity, they have chosen to proceed to formation of the
district. Within a representative form of government they are allowed to make such
choices, so long as they follow the procedures required. This they have done.
Accordingly, the Court grants summary judgment in favor of the Defendant Jefferson
County Public Utility District #1 and the complaint of the Plaintiffs objecting to the
formation ofLUD #14 is dismissed.
DATED this
day of
,2005.
Respectfully submitted,
KEN WILLIAMS
JUDGE
LOG ITEM
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